BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 783 (Dutton)
As Amended June 6, 2011
Hearing Date: July 5, 2011
Fiscal: No
Urgency: Yes
EDO
SUBJECT
Special Access: Notice of Violation and Right to Cure
DESCRIPTION
This bill would impose pre-litigation procedural requirements
upon the filing of any claim under the state's civil rights and
equal access to public or housing accommodation laws, including
claims of violations of the Americans with Disabilities Act
(ADA) in state-owned facilities. Specifically, this bill would
require:
a specified and highly detailed 30-day notice of violation
served by personal service or certified mail on the property
owner or other responsible party, with a possible 120-day
additional waiting period during which the property owner or
other responsible party may bring the property into compliance
with disability access laws;
if correction of the violation does not occur by the end of
the additional 120 days and the owner fails to provide a
satisfactory explanation, the claimant would be permitted to
file the claim;
if correction of the violation does occur, the aggrieved party
and all future aggrieved parties would be prohibited from
receiving any award of damages, other than defined "special
damages," or any award of attorney's fees, in any claim filed
based on the same or similar facts.
The bill contains legislative findings and declarations
regarding the abuse of special access laws through vexatious
litigation, and the intent of the Legislature to restrict the
filing of special access lawsuits under California law by
requiring notice to the owners and providing them with the
(more)
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opportunity to cure the violations.
BACKGROUND
Since 1969, persons with disabilities have enjoyed protection
under Civil Code
Sections 54 and 54.1, which entitle individuals with
disabilities and medical conditions to full and free access to
and use of roadways, sidewalks, buildings and facilities open to
the public, hospitals and medical facilities, and housing. After
Congress enacted the Americans with Disabilities Act (ADA) in
1990, the state made a violation of the ADA also a violation of
Section 54 or 54.1. The state protections provided to disabled
persons are comparatively higher than those provided under the
ADA and are independent of the ADA.
A violation of Section 54 or Section 54.1 makes a person liable
for actual damages plus a maximum of three times the actual
damages (but not less than $1,000), plus attorney's fees and
costs. In a private right of action under the ADA, a plaintiff
may obtain injunctive relief and attorney's fees, while an
action by the U.S. Attorney may bring equitable relief, monetary
damages on behalf of the aggrieved party, and a civil penalty of
up to $100,000.
Under the Unruh Civil Rights Act, all persons, regardless of
sex, race, color, religion, ancestry, national origin,
disability or medical condition, are entitled to the full and
equal accommodations, advantages, facilities, privileges, or
services in all business establishments of every kind
whatsoever. (Civil Code Section 51.) A violation of the ADA
also constitutes a violation of Section 51. A violation of this
section subjects a person to actual damages incurred by an
injured party, plus treble actual damages but not less than
$4,000, and any attorney's fees as the court may determine to be
proper. (Civil Code Section 52.)
SB 262 (Kuehl, Chapter 872, Statutes of 2003) established in the
Division of the State Architect a voluntary "access specialist
certification program" in order to assist business and property
owners to comply with ADA and state access laws. The bill also
authorized an enforcement action with civil penalties for
noncompliance with ADA and state access laws, after notification
of the business owner or operator by a government agency. The
authority to institute a civil action was extended to county
counsels (in addition to the Attorney General, district
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attorney, and city attorney).
In 2003 and 2005, several bills were introduced after multiple
lawsuits were filed in state court by a few plaintiffs and
attorneys against business owners and operators for apparently
technical violations of the state's access or ADA regulations.
(SB 69 (Oller, 2003), AB 209 (Leslie, 2003), AB 20 (Leslie,
2005), SB 855 (Poochigian, 2005).) Three of those bills would
have required pre-litigation procedures for a plaintiff to
undertake prior to the filing of a complaint, including notice
to the owner of the property or business of the alleged
violations and would have provided a specified time period for
the owner or business to cure the violations. One bill (AB 20)
would have precluded an action for damages for a de minimus
violation, allowing only injunctive relief and attorney's fees.
All of those bills failed passage in the Judiciary Committees of
their respective houses.
In 2008, three bills were introduced relating to disability
access. (AB 2533 (Keene, 2008), SB 1766 (McClintock, 2008), SB
1608 (Corbett, Harman, Steinberg, Runner and Calderon, Chapter
549, Statutes of 2008).) AB 2533 would have required a person
alleging violations of the full and equal access laws to first
deliver a notice to the entity alleged to have denied or
interfered with access, specifying the physical conditions
complained of, and would have required that entity to make a
good faith effort to remedy the condition complained of. No
person could file an action unless the person to whom the notice
was given failed, within 30 days of receipt of the notice, to
commence a good faith effort to remedy the condition complained
of, or the person allowed unreasonable delays in remedying the
condition. AB 2533 failed passage in the Assembly Committee on
Judiciary.
SB 1766 would have taken a similar approach by imposing a duty
on a person with a disability to first notify by certified mail
the owner or manager of the housing or public accommodation in
violation of the full and equal access laws and also impose a
duty on the owner or manager to remedy the condition complained
of within six months. It would prohibit the person with a
disability from filing a complaint until six months after the
certified letter of notification was received. SB 1766 would
have made the owner of the property on which the accommodation
with the alleged violations is located the responsible party for
the costs of any access improvements made in response to the
certified letter of complaint. This bill failed passage in the
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Senate Committee on Judiciary.
Alternatively, SB 1608, which took effect January 1, 2009, did
not create any pre-litigation hurdles for a person with
disability but instead, among other things, provided for an
early evaluation of a filed complaint if the defendant is a
qualified defendant who had the identified place of public
accommodation inspected and determined to meet applicable
physical access standards by a state Certified Access Specialist
prior to the filing of the complaint. (See Comment 2 for
further discussion.)
This bill is substantially similar to SB 855 (Poochigian, 2005)
and would establish notice requirements for an aggrieved party
to follow before he or she can bring a disability access suit
and give the business owner a 120 day opportunity to cure the
violation. If the property owner "cures" the violation, the
aggrieved party cannot receive any damages or attorney's fees,
except for special damages.
CHANGES TO EXISTING LAW
Existing federal law , the Americans with Disabilities Act,
provides that no individual shall be discriminated against on
the basis of disability in the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any
person who owns, leases, or leases to, or operates a place of
public accommodation. (42 U.S.C. Sec. 12181.)
Existing law provides that individuals with disabilities or
medical conditions have the same right as the general public to
the full and free use of the streets, highways, sidewalks,
walkways, public buildings, medical facilities, including
hospitals, clinics and physicians' offices, public facilities
and other public places. It also provides that a violation of
an individual's rights under the ADA constitutes a violation of
state law. (Civ. Code Sec. 54.)
Existing law provides that individuals with disabilities shall
be entitled to full and equal access to public accommodations,
subject only to the conditions and limitations established by
law, or state or federal regulation, and applicable alike to all
persons. It further provides that individuals with disabilities
shall be entitled to full and equal access to all housing
accommodations offered for rent or lease, subject to conditions
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and limitations established by law. A violation of the ADA also
constitutes a violation of Section 54.1. A violation of Section
54.1 subjects a person to actual damages, plus treble actual
damages but not less than $1,000, and attorney's fees as the
court deems proper. (Civ. Code Sec. 54.1.)
Existing law , the Unruh Civil Rights Act, declares that all
persons, regardless of sex, race, color, religion, ancestry,
national origin, disability or medical condition, are entitled
to the full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every
kind whatsoever. A violation of the ADA also constitutes a
violation of Unruh. A violation of this section subjects a
person to actual damages incurred by an injured party, treble
actual damages but not less than $4,000, and any attorney's fees
as the court may determine to be proper. (Civ. Code Sec. 51.)
Existing law, pursuant to SB 1608, established the California
Commission on Disability Access (CCDA), an independent state
agency composed of 19 members, with the general responsibility
for monitoring disability access compliance in California, and
making recommendations to the Legislature for necessary changes
in order to facilitate implementation of state and federal laws
on disability access. (Gov. Code Sec. 8299 et seq.)
Existing law, pursuant to SB 1608, requires an attorney, when
serving a demand for money letter or a complaint on a defendant,
include a written advisory to the defendant of the defendant's
rights and obligations, including the right of a qualified
defendant to request a stay and an early evaluation conference
regarding the allegations in the complaint. This written
advisory is required from an attorney only and is not required
from a pro per plaintiff. (Civ. Code Sec 55.3.)
Existing law, pursuant to SB 1608, defines terms for a
disability access action, specifically, existing law:
defines a qualified defendant as a defendant in an action that
includes an accessibility claim as to a place of public
accommodation that has been inspected by a certified access
specialist (CASp) and determined to meet applicable
construction-related accessibility standards or pending
determination by a CASp;
defines a certified access specialist whose inspection report
would be the basis for a defendant to qualify for the early
evaluation conference;
defines the construction-related accessibility standard that a
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CASp would use to inspect and prepare a report on the place of
public accommodation. With respect to this standard, the bill
would provide that standards adopted in state law would be
used unless standards under federal law are higher; and
enumerates the duties of the CASp with respect to the
inspection, the corrections that may need to be made to the
site, written inspection report, and the statement of
compliance, including the issuance, upon completion of the
inspection and a determination that the site meets applicable
construction-related accessibility standards, of a specified,
watermarked, and sequentially numbered disability access
certificate that may be displayed at the site. (Civ. Code
Sec. 55.52.)
Existing law, pursuant to SB 1608, provides that if a CASp
determines that a site meets all applicable construction-related
accessibility claims the CASp must provide a written inspection
report to the requesting party that includes specified
information. If the CASp determines that corrections are needed
to the site in order for it to meet all applicable
construction-related accessibility standards, the CASp must
provide a written inspection report to the requesting party that
identifies the needed corrections and a schedule for completion.
(Civ. Code Sec. 55.53.)
Existing law, pursuant to SB 1608, requires every CASp who
completes an inspection of a site to provide the owner or tenant
with a disability access inspection certificate if the site
either meets applicable construction-related accessibility
standard or is a CASp determination pending site. Existing law
permits the building owner or tenant to post the certificate on
the premises unless, after the date of inspection, the inspected
site has been modified or construction has commenced to modify
the inspected site in a way that may impact compliance with
construction-related accessibility standards. (Civ. Code Sec.
55.53.)
Existing law, pursuant to SB 1608, outlines the specific process
to be followed when filing a disability access claim,
specifically, existing law:
specifies the contents of the request and includes a link to
the Judicial Council of California's Web site to access the
appropriate court forms;
provides that the defendant may file an application requesting
an early evaluation conference (EEC) after the defendant is
served with the summons and complaint within 30 days of
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receiving the summons and complaint;
grants a 90-day stay of the proceedings with respect to the
construction-related accessibility claims, unless the
plaintiff has obtained temporary injunctive relief;
requires a mandatory EEC to be scheduled no later than 50 days
after issuance of the order but no earlier than 21 days after
the request is filed;
directs the parties to appear in person at the time set for
the conference;
directs the defendant to file with the court and serve on the
plaintiff a copy of any relevant CASp inspection report at
least 15 days prior to the date of the EEC;
directs the plaintiff to file with the court and serve on the
defendant at least 15 days prior to the date of the EEC a
statement containing, to the extent reasonably known, an
itemized list of the alleged violations, the amount of damages
claimed, the amount of attorney's fees and costs claimed, and
any demand for settlement of the case in its entirety;
specifies that the court shall lift the stay when defendant
has failed to file and serve the CASp inspection report when
required and also did not produce the report at the EEC,
unless good cause for the failure is shown;
specifies that the court may lift the stay at the conclusion
of the EEC upon a showing of good cause by the plaintiff;
specifies the court's authority to schedule additional
conferences or to extend the stay for no more than an
additional 90 days, upon a showing of good cause; and
specifies the determinations the court would make at the EEC.
(Civ. Code Sec. 55.54.)
Existing law, pursuant to SB 1608, provides that the stay and
early evaluation conference shall not be deemed to make any
inspection report or opinion of a CASp binding on the court or
to abrogate the court's authority to make appropriate findings
of fact and law. (Civ. Code Sec. 55.54.)
Existing law, pursuant to SB 1608, provides that the stay and
early evaluation conference shall not be construed to invalidate
or limit any California construction-related accessibility
standard that provides greater or equal protection for the
rights of persons with disabilities than is afforded by the ADA
and the federal regulations adopted pursuant to that act. (Civ.
Code Sec. 55.54.)
Existing law, pursuant to SB 1608, provides that notwithstanding
the requirement that offers of compromise are privileged and
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protected under Evidence Code Section 1152, the court may
consider, along with other relevant information, settlement
offers made and rejected by the parties, in determining an award
of reasonable attorney's fees and recoverable costs in any
construction-related accessibility claim. (Civ. Code Sec.
55.55.)
Existing law, pursuant to SB 1608, provides that statutory
damages may be recovered in a construction-related accessibility
claim only if a violation or violations of one or more
construction-related accessibility standards denied the
plaintiff full and equal access to the place of public
accommodation on a particular occasion. Existing law specifies
that a plaintiff is denied full and equal access only if he or
she personally encountered the violation on a particular
occasion or was deterred from accessing the public accommodation
on a particular occasion. (Civ. Code Sec. 55.56.)
This bill would impose pre-litigation procedural requirements
upon the filing of any claim under the state's civil rights and
equal access to public or housing accommodation laws, and limit
an aggrieved party's right to damages and attorney's fees, as
specified.
This bill would require the aggrieved party, prior to the filing
of any claim, to serve a notice by personal service or certified
mail on the owner of the property or other responsible person,
detailing:
the specific federal or California statute of which the
property is believed to be in violation;
the identity of the person harmed by the violation;
the possible violations that have been identified, specifying
the facts constituting the violation, including the date on
which the violation occurred, the exact location of the
violation so that the owner or other responsible party may
locate the violation; and
the rights of the owner or responsible party to respond in one
of three ways, and detailing what those three ways are.
This bill would grant the property owner or responsible party 30
days from the date of the notice to respond, by personal service
or certified mail, in one of three ways:
expressly state that improvements will be made to bring the
property into compliance with applicable laws, in which case
the owner would have another 120 days from the date the
response is received by the aggrieved party to complete those
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improvements;
challenge the validity of the alleged violation, in which case
the aggrieved party may file a claim; and
state that the alleged violations have been corrected, and
attach evidence that verifies the improvements.
This bill would provide that if the violation is corrected
within the 120-day period, an award of damages would be
prohibited, except for "special damages," as defined, and an
award of attorney's fees, to the current or future alleged
aggrieved parties for any claim arising out of the same facts
that served as the basis for the violation.
This bill would provide that if the violation is not corrected
within the 120 day period and the owner or responsible party
fails to provide a satisfactory explanation, the aggrieved party
may file a claim.
This bill would deem as a nonadmission of guilt, statements made
by the owner or responsible party in the response to the notice
of violation, expressly stating that the property would be
brought into compliance, and make such statements inadmissible
in any future claim based on the same facts.
This bill would require the use of this procedure in all claims
for damages or fees, other than those praying for special
damages arising out of an injury in fact because of a denial of
full and equal access under the state's access laws.
This bill would require a court or jury to consider, in making a
determination of the amount of damages awarded to a successful
plaintiff, previous or pending actual damage awards received or
prayed for by the plaintiff for the same or similar injury.
This bill would require the use of this procedure in all claims
based on ADA violations in state-owned facilities.
This bill would declare legislative intent to institute programs
to educate business property owners and local municipalities
about the accessibility requirements of federal and state
special access laws.
This bill contains legislative findings and declarations.
This bill would include an urgency clause and would go into
effect immediately.
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COMMENT
1. Stated need for the bill
The author writes:
Recently, there has been an increase in small businesses being
challenged by lawsuits for their non-compliance of federal and
state provisions of the ADA. In most cases, a handful of
attorneys utilize a boilerplate lawsuit claiming a business is
in violation of a number of special access laws. Using
aggressive lawsuits and threats, these attorneys have designed
a scheme to extract financial compensation knowing small
businesses may lack the resources to combat such a lawsuit in
a court of law. In the end, businesses settle out of court
and ultimately the only outcome is "legalized extortion."
In support of this bill, the Civil Justice Association of
California (CJAC) writes, "�g]iven the difficulty for small
businesses to consistently meet all disabled access
requirements, it is appropriate to provide a short window of
time for them to make the necessary modifications before they
are subject to a lawsuit. There will still be an incentive for
property owners to pursue compliance prior to being notified of
a violation because many major modifications cannot be completed
in 120 days. There are many well-intentioned property owners
who are trying to comply but still may have minor technical
violations due to the complexity and specificity of the
regulations. Lawsuits are not necessary in these situations."
Also in support of this bill, California Citizens Against
Lawsuit Abuse (CALA), writes, "CALA supported SB 1608 Corbett
back in 2008 as a compromise, it has become clear that that
legislation has had little or no impact on the current situation
in our state. I would argue that the rampant ADA lawsuits have
only increased since the signing of SB 1608 in September of
2008."
2. Bill would undermine recent collaborative legislative efforts
In addition to the major policy concerns raised by this bill,
which will be discussed further below, this bill arguably
undermines the passage of SB 1608 (Corbett, Harman, Steinberg,
Runner and Calderon, Chapter 549, Statutes of 2008). After over
two years of regular stakeholder meetings, advocates from the
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disability community, the Consumer Attorneys of California
(CAOC), the California Chamber of Commerce, the California
Restaurant Association, the Business Properties Association, the
California Hotel Association, and several others, came together
on the issue of disability access suits. SB 1608 was
co-authored by both Democrats and Republicans and garnered
bi-partisan support in both the Senate and Assembly. According
to CAOC, since the passage of SB 1608, "CAOC has been in the
forefront of attempting to alert businesses about the legal
protections they will get if they hire a certified access
specialist (CASp) and about the law generally. We produced
pamphlets in both English and Spanish, have put out business
alerts via our website, have participated in workshops, and are
currently in production on a video for small businesses with the
top 10 steps they can take to make sure that this information
will be easily available to any business."
Among other things, SB 1608 established an Early Evaluation
Conference (EEC) for a qualified defendant to request a stay of
court proceedings for that claim (not the entire cause of
action) for a period of 90 days if the defendant's place of
public accommodation had been previously inspected by a
certified access specialist (CASp) and was determined to meet
physical accessibility standards.
Related to the EEC, SB 1608 also required an attorney to
include, in any demand for money or complaint filed a written
advisory to the defendant of any rights and obligations, as well
as the right to request a stay and an EEC. Additionally, SB
1608 imposed educational requirements for architects and
building inspectors to include specified hours of training in
disability access laws, regulations, and standards.
Further, SB 1608 created the California Commission on Disability
Access (CCDA) which, among other things, is required to conduct
studies and make reports to the Legislature. The CCDA is
composed of 19 members: two Senators and two Assembly Members;
two public members appointed by the Senate Committee on Rules
(one from the disability community and one from the business
community); two public members appointed by the Speaker of the
Assembly (one from the disability community and one from the
business community); nine public members appointed by the
Governor, subject to confirmation by the Senate (five from the
disability community and four from the business community); the
Attorney General; and the State Architect. The CCDA seeks to
balance the number of appointees from the disability community
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and from the business community. The Members of the
Legislature, by their offices, represent the state's interest in
ensuring compliance with the full and equal access laws. The
State Architect and the Attorney General are included for their
expertise. The Governor's appointees from the disability
community must represent a cross-section of people with
disabilities, including a person with a physical disability, a
person who is visually impaired or blind, a person who is with a
cognitive disability, and a person who is hearing impaired or
deaf.
The CCDA meetings are subject to the Bagley-Keene Open Meeting
Act. This means that all CCDA meetings are noticed and its
agenda is published. The meetings are also open to the public
and accessible to all. The CCDA is responsible for monitoring
compliance, reporting and making recommendations to the
Legislature. One of the major tasks of the CCDA is to develop,
in consultation with the staff of the California Building
Standards Commission, a master checklist for disability access
compliance that may be used by building inspectors.
Additionally, the CCDA is required to study the operation of the
early evaluation conference and to assess whether or not the
procedure is operating to achieve its desired goal of reducing
unnecessary civil actions that seek attorney's fees and damages
but do not facilitate or advance compliance with state laws and
regulations governing disability access.
To date, the Commission has been meeting regularly in order to
organize itself and meet its responsibilities, and about a month
ago hired an Executive Director. Due in part to some of the
delays the CCDA has experienced, the process provided for under
SB 1608 has not been given the opportunity to be fully
operational. This bill would undermine the 1608 process and
arguably all of the work that went in to achieving this
collaborative effort.
3. This bill would create unprecedented pre-litigation
procedural hurdles for disabled persons that would undermine
enforcement of the ADA and California's civil rights and equal
access laws
Under existing law, if an individual's civil rights or liberties
are violated, they have a right to seek recourse in a court of
law by filing a complaint. While there are situations where a
plaintiff is required to take some preliminary steps before
commencing an action or proceeding, those situations relate to
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contract and quasi-contract actions, beneficiary-trustee
lawsuits against third parties, and to cases of professional
malpractice by architects, engineers, land surveyors and common
interest development contractors (Witkin, California Procedure
4th Ed., Vol. 3, 198 et seq.) This bill would create an
unprecedented pre-litigation hurdle for persons with
disabilities enforcing their civil rights which would result in
an additional inequity since no other protected classes of
persons are subject to such procedural hurdles.
Specifically, this bill would require "an alleged aggrieved
party" to serve notice, by personal service or certified mail,
to the property owner or responsible party. This bill contains
the specific language that the notice must include as well as
the specific violations being alleged, the person or persons who
suffered an injury as a result of the violations, and the
options that are available to the property owner or responsible
party. The property owner would then have 30 days to respond to
the notice. During that time, the aggrieved claimant would not
be able to proceed any further.
It can be presumed that since the information contained in the
notice must be specific to each and every violation, including
citations of any state or federal statute, this could result in
most claimants needing to seek the assistance of an attorney.
However, this bill would also provide that if a disabled person
does file a complaint, they would be prohibited from recovering
attorney's fees, as discussed below. As a result, this
requirement could act as a financial deterrent to disabled
persons pursuing their claim for a violation of their civil
rights to equal access.
Proponents of the bill argue that "�this bill] is necessary
because there continues to be an abundance of ADA access
lawsuits in California and recent changes to disabled access
laws have not fixed the problem. . . While SB 1608 was an
improvement, the fundamental problem of lawyer-driven, serial
lawsuits still exists. These types of plaintiffs are often
filing 'drive-by' lawsuits, where they simply request a
settlement payment, not that the property be made accessible."
In response, Disability Rights California (DRC), writes, "it is
essential to remember that the current law contains the minimum
standards needed to provide access and already takes into
account such things are whether a building pre-existed the
adoption of the law, whether barrier removal is achievable, and
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what resources are available to do so. To the extent that it
can be shown that there are abuses in the use of access law
remedies, any proposed solution must be narrowly crafted to
target only those abuses, without impairing legitimate actions
pursuant to laws necessary to ensure access and civil rights."
As noted by DRC, the law provides business owners with the
minimum standards for compliance with state and federal
disability access standards. This bill would allow property
owners to ignore the law until a disabled person makes a
complaint. During that time the disabled person who suffered as
a result of the property owner's actions, could not do anything
while the property owner is not only given 30 days to respond,
but is also given numerous options to decide how he or she wants
to respond. Under this bill, if the property owner "chooses" to
comply with the law, they have another 120 days, on top of the
30 days to respond, in order to do so.
SHOULD THIS UNPRECEDENTED PRE-LITIGATION PROCEDURAL HURDLE BE
IMPOSED ON DISABLED PERSONS UNLIKE ALL OTHER PROTECTED CLASSES?
4. Bill would give violators of disability access laws the right
to cure, unlike any other violator of civil rights
This bill would give violators of state and federal disability
access laws the right to cure a violation before a party may
file a complaint. That right to cure is unprecedented and not
imposed on any other protected class attempting to enforce their
civil rights.
Upon receiving notice from the claimant that the property may be
in violation of disability access laws, the property owner has
30 days to respond. In that response, the property owner has
three options.
First, if the alleged violations have been corrected, the
property owner or responsible party may state so in a response,
and attach evidence of the corrective action taken. This of
course, is done outside of court and is not subject to any
oversight.
Second, the property owner or responsible party may challenge
the validity of the alleged violations, in which case the
claimant may file a claim, subject to any applicable statute of
limitation, at any time after the claimant has received the
notice from the property owner or responsible party. There are
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several problems with this option. For one it is unclear, what
the phrase "challenge the validity of the alleged violation"
means. This begs the question as to whether a one sentence
response, "I challenge the validity of your claims" would
suffice. There is also an issue with the 30-day period that the
property owner has to respond to the claimant's notification.
There could be circumstances wherein the property owner or
responsible party does not respond until the 30th day from the
date of the notice, and the statute of limitation runs on the
30th day.
Third, the property owner may expressly agree to take corrective
action, in which case the disabled person would have to wait
another 120 days to see if they were made or not. Also, this
response may not be considered an admission of guilt and would
be inadmissible in a future claim filed against the property
owner, agent or responsible party.
This bill would also require the court or jury to consider
previous or pending actual damage awards to a successful
plaintiff or requested in other pending lawsuits, when making a
determination of the amount of damages to award to a plaintiff.
CAOC notes that "it appears unprecedented to have this type of
provision in law and it would prove to have a chilling effect on
legitimate cases. Further, existing law already contains
protections against vexatious litigants so this provision is
unnecessary." Considering that a previous express promise by the
defendant to bring the property into compliance (which
presumably was not fulfilled) would be prohibited from being
admitted into evidence, it is arguably unfair that the court is
required to consider the plaintiff's past history of filing
these lawsuits.
5. Award of attorney's fees, costs and treble damages would be
eliminated
Under existing law, in addition to actual damages, a court may
award a successful plaintiff his or her attorney's fees and
costs and treble damages in an amount not less than $1,000 in an
action for specific civil rights violations perpetrated against
disabled persons.
This bill would prohibit a plaintiff from recovering anything
but "special damages" in these actions. "Special damages" are
challenging to prove and are generally defined as "actual, but
not the necessary, result of the injury complained of, and which
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in fact follow as a natural and proximate consequence in the
particular case, this is by reason of special circumstance and
conditions."
Actual damages in actions involving denial of full and equal
access to disabled persons are hardly ever present or are very
difficult to ascertain except in situations involving, for
example, hospitals and clinics, and the plaintiff is in need of
medical attention. Thus, the law provides for the minimum of
$1,000 in treble damages so that businesses would be deterred
from ignoring the rights of access by these persons to their
establishments. In addition, an award of attorney's fees and
costs is provided under existing law because oftentimes actual
damages are minor and are insufficient to cover the costs of
litigation.
While the proponents of this bill may seek to curb unmeritorious
lawsuits or lawsuits that they assert are commenced to extract
payments from businesses, this bill would in fact also curb
meritorious claims by disabled plaintiffs. The disabled
community asserts that after over 40 years of state and 20 years
of federal law guaranteeing full and equal access, compliance by
businesses across the state leaves much to be desired. Thus,
the value of attorney's fees and costs, as well as the minimum
$1,000 in treble damages, to plaintiffs seeking redress is
immeasurable, because without the court's ability to make this
award, no one can afford to file suit to compel compliance.
Other laws relating to the exercise of civil rights (such as
access to senior housing, gender discrimination, discrimination
by business establishments based on specified characteristics)
provide for similar recovery of actual damages, attorney's fees
and costs, and minimum treble damages. If this bill becomes
law, it would treat disabled persons differently than other
protected classes.
SHOULD PLAINTIFFS WHO ARE DISABLED BE TREATED DIFFERENTLY THAN
OTHER PROTECTED CLASSES?
6. Legislative findings and declarations are not based on
empirical data regarding these lawsuits
This bill contains legislative findings and declarations that
make sweeping statements without empirical data that support the
findings. For example, the bill states:
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"Vexatious special access lawsuits unduly burden our courts
and taxpayers and do not result in improved access for those
with special access needs. Those lawsuits cost California
jobs and economic prosperity, unfairly threaten small
businesses, force businesses to respond with higher costs for
goods and services, and have adverse impacts on levels of
employment and employee compensation."
Except for the few vexatious litigants that have appeared in the
newspaper headlines about access lawsuits, there are no sources
of reliable information regarding the degree by which the equal
access laws of the state are being abused. These equal access
laws were passed to ensure that all citizens are provided the
same opportunities to avail themselves of goods and services
provided by business establishments in the state. The
enforcement mechanism has largely been these access lawsuits, in
the absence of a comprehensive educational program from the
federal government on down to the local city hall. Where the
lawsuits are brought in good faith, and accompanied by a request
for injunctive relief, the sued businesses and the disabled
person(s) have generally reached agreement on improvements to
make facilities more accessible.
Support : American Council of Engineering Companies; Apartment
Association of Orange County; Barich & Associates Marketing
Services, Inc.; Big Bear Chamber of Commerce; Big O Tires;
Burgeson's Heating & Air Conditioning, Inc.; California
Apartment Association; California Association of Bed & Breakfast
Inns; California Citizens Against Lawsuit Abuse; California
Grocers Association; California Hotel & Lodging Association;
California Independent Grocers Association; California
Manufacturers & Technology Association; California Retailers
Association; CapitalSource Bank Redlands; Chino Valley Chamber
of Commerce; City Council of the City of Highland; Civil Justice
Association of California; Cortez Ornamental Iron; Eadie and
Payne, LLP; First Evangelical Lutheran Church; Greater Riverside
Chambers of Commerce; Highland Area Chamber of Commerce;
Irwindale Chamber of Commerce; It's a Grind; Lilburn
Corporation; Loma Linda Chamber of Commerce; Maupin Financial
Services; NAIOP Commercial Real Estate Development Association;
Private Security Contractors Group; Redlands Auto Electric;
Safeway Building Services, Inc.; San Bernardino Area Chamber of
Commerce; State Farm Insurance; Tabs Tax and Bookkeeping
Solutions, Inc.; Upland Chamber of Commerce; Yucaipa Valley
Chamber of Commerce; 7 Individuals
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Opposition : American Civil Liberties Union; California Alliance
for Retired Americans; California Council of the Blind;
California Foundation for Independent Living Centers; Congress
of California Seniors; Consumer Attorneys of California;
Disability Rights Education & Defense Fund; Disability Rights
California; Margen + Associates Disability Policy & Universal
Design Consultants; Shawn B. Smith, Architect
HISTORY
Source : Redlands Chamber of Commerce
Related Pending Legislation : None Known
Prior Legislation :
SB 209 (Corbett & Harman, Chapter 569, Statutes of 2009)
required a CASp inspection report, to remain confidential rather
than be under seal and subject to protective order.
SB 1608 (Corbett et al., Chapter 549, Statutes of 2008) See
Background and Comment 2.
SB 1766 (McClintock, 2008) See Background.
AB 2533 (Keene, 2008) See Background.
SB 855 (Poochigian, 2005) See Background.
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